OGS Procurement Services Group 2008 State Purchasing Forum State Finance Law

2008 Purchasing Forum – State Finance Law Noreen J. VanDoren Assistant Counsel Office of General Services (518) OGS Website: Presenter’s Contact Information

2008 Purchasing Forum – State Finance Law CONTRACT Uniform Commercial Code Federal Laws (e.g. Intellectual Property, Telecom) Procurement Council Guidelines Executive Law Case Law State Finance Law Regulations

2008 Purchasing Forum – State Finance Law Overview State Finance Law Article 11 Governs the process for State agency acquisition of: Commodities Services Technology

2008 Purchasing Forum – State Finance Law Underlying Principles and Legislative Findings Responsibility of OGS and State Agencies in cooperation with OSC and DOB to: Provide for the wise and prudent use of public money in the best interests of the taxpayers of the state; Guard against favoritism, improvidence, extravagance, fraud & corruption; and Facilitate the efficient and timely acquisition of commodities and services of the highest quality at the lowest practicable cost within available resources. Procurement Stewardship Act

2008 Purchasing Forum – State Finance Law Comprehensive Statutory Scheme Procurement Stewardship Act Article XI – State Purchasing Section 160 Definitions 161 State Procurement Council 162 Preferred Sources Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Section163 Purchasing services and commodities (Sunset: 6/30/08) 163-a Vendor preparation of specifications for technology procurements; prohibitions 163- b Environmentally-sensitive cleaning and maintenance products 164 Exemptions Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Section 165 Purchasing restrictions 166 Requirements for financed equipment acquisition 167 Transfer and disposal of personal property 168 The management of surplus computer equipment Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law New York State Procurement Council The New York State Procurement Council was established through the passage of State Finance Law Section 161. The Council’s purpose is to review, examine and develop improvements to the state’s procurement process.

2008 Purchasing Forum – State Finance Law Procurement Guidelines Detailed guidance to State agencies on how to conduct procurements Summarizes the multiple approaches to buy Provide guidance for successful procurements Provides details on various purchasing methods Provides examples of good procurement practices (Currently under revision) New York State Procurement Council

2008 Purchasing Forum – State Finance Law Government Procurement & Competitive Bidding Definitions - State Finance Law §160 Commodity Service Technology Costs Price Provides a foundation of commonly understood concepts to apply within public procurement infrastructure

2008 Purchasing Forum – State Finance Law Government Procurement & Competitive Bidding Invitations for Bids (IFBs) Competitive Bidding Methodology Primarily used for procurement of commodities Basis for Contract Award - Meet specifications - Lowest price

2008 Purchasing Forum – State Finance Law Request for Proposals (RFPs) Competitive Solicitation Methodology Primarily used for procurement of services and technology Basis for Award - Pre-established evaluation criteria where cost is not necessarily the determining factor - “Best Value” to the purchaser is the determinative criteria (consider form, function and utility) Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Best Value Documentation & Other Requirements Best Practices – Before You Solicit: Document the intended basis for award (such as meeting mandatory requirements, “best value” or “lowest price”). Determine the technical and financial evaluation criteria and relative weight. Quantify criteria whenever possible, to optimize quality, cost and efficiency. Determine and document the evaluation and selection process. Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Main Distinction between IFB & RFP “Lowest Price” vs. “Best Value” [State Finance Law, §163] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Procurement Lobbying Act Before advertising the solicitation, remember: Section 139-j Restrictions on contacts during the procurement process Section 139-k Disclosure of contacts and responsibility of offerers s/defaultAdvisoryCouncil.html

2008 Purchasing Forum – State Finance Law “Lowest Price” The basis for awarding contracts for commodities among responsive and responsible offerors. [SFL§163(1)(i)] “Best Value” The basis for awarding contracts for services to the offeror which optimizes quality, cost and efficiency, among responsive and responsible offerors. Such basis shall reflect, wherever possible, objective and quantifiable analysis. Services include technology. [SFL§163(1)(j)] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Types of Contracts [State Finance Law §163] Centralized Contract Agency Specific Contract Preferred Sources Emergency Contract Single Source Contract Sole Source Contract Multiple Awards Piggybacking (Adoption of Another Government Entity Contract) Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Centralized Contracts Any contract for the purchase of commodities or services, established or approved by the Commissioner of General Services as meeting the State's requirements including, but not limited to, any contract let by the federal government, other state or local governments or purchasing consortia. [SFL§160(1)] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Examples of Centralized Contracts: Vehicles & heavy equipment Pharmaceuticals & medical equipment Electronic Value Transfer (credit cards)/procurement card Fuel Oil, Gasoline, Road Salt PCs Rubbish Removal Telecommunications Systems & Services Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Agency Specific Contracts Specialized Requirements Needed to Meet Agency Mission Consultant Services Prescription pads for DOH Digital Fingerprinting Identification Specialized Software Entertainment Services Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Preferred Sources “To advance special social and economic goals, selected providers shall have preferred source status…Procurement from these providers shall be exempted from competitive procurement provisions.” [State Finance Law §162] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Correctional Services – Commodities Agencies for the Blind – Commodities & Services Agencies for the Severely Disabled Special Employment for Mentally Ill Disabled Veterans Veterans Qualified Apparel Manufacturer September 11 th Registry (exp. 09/01/08) Government Procurement & Competitive Bidding Preferred Status

2008 Purchasing Forum – State Finance Law Public List of Commodities & Services Approval by Procurement Council Price Approval – Not greater than 15% above Prevailing Market Price Alternate Process for Procurements of Apparel & Textiles Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Emergency Contracts Procurements may be made to meet emergencies arising from unforeseen causes without using a formal competitive process. Such procurements shall be made only under unusual circumstances and shall include a determination in the procurement record of the nature of the emergency and that the procurement was conducted in a fair and equitable manner. [State Finance Law §163(10(b))] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Single Source A procurement in which although two or more offerors can supply the required commodities or services, the Commissioner or State agency, upon written findings setting forth the material and substantial reasons therefore, may award the contract to one offeror over all others. The Commissioner or State agency shall document in the procurement record the circumstances leading to the selection of the vendor, including the alternatives considered, the rationale for selecting the specific vendor and the basis upon which it determined the cost was reasonable. [State Finance Law §163(1)(h)] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Sole Source Sole Source means a procurement in which only one offeror is capable of supplying the required commodities or services. [State Finance Law §163(1)(g)] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Multiple Awards The Commissioner or State agency may elect to award a contract to one or more responsive and responsible offerors provided, however, that the basis for the selection among multiple contracts at the time of purchase shall be the most practical and economical alternative and shall be in the best interests of the State, and further provided that the requirements set forth herein shall not preclude the Commissioner from establishing multiple award contracts for reasons including increased opportunities for small businesses to participate in State contracts. [State Finance Law §163(10)(c)] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law The Commissioner of General Services may authorize purchases required by state agencies or authorized purchasers by letting a contract or by approving the use of a contract let by any department, agency or instrumentality of the United States government and/or any department, agency, office, political subdivision or instrumentality of any state or states. [State Finance Law §163(10)(e)] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law The Commissioner of General Services is authorized to let centralized contracts for joint purchasing by New York State and any department, agency or instrumentality of the United States government and/or any state including the political subdivisions thereof; provided however that any entity incurring a liability under such contract shall be responsible for discharging said liability. [State Finance Law §163(10)(f)] Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Under this authority, the State can recognize and use or be a part of contracts of other public purchasers. In most instances, these other government entities establish their agreements using competitive solicitations. This procurement methodology has proven to be a tool that provides a means to meet special requirements or to efficiently and economically meet the needs of State agencies and Authorized Users. Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Note: These contracts and purchases also need to be supported by a procurement record and are subject to OSC approval. Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Piggybacking Agreements Have provided for imaging systems, landscape furniture, cellular telephone service and mission specific consultant services such as Year 2000 programming. Joint Agreements Have provided for pharmaceuticals (Minnesota multi-state) and traffic cones (New England States and New York). Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Before developing your own Solicitation, check to see if what you need can be obtained through: A Preferred Source offering An OGS Centralized Contract Another Agency’s contract Process for Conducting Procurements

2008 Purchasing Forum – State Finance Law Criteria for OGS Centralized Contracts: Availability of a volume discount; Prior use of the commodity among state agencies; Relative cost of establishing the contract; Anticipated use; and Expected actual savings for the State. Process for Conducting Procurements

2008 Purchasing Forum – State Finance Law Drafting & Issuing Agency Contracts IFB vs. RFP NYS Contract Reporter Advertisement - Required if Contract Value Over $15,000 [Article 4C Economic Development Law] - Receipt of offers minimum of fifteen business days after notice published Appendix A (Standard Clauses for State Contracts) Process for Conducting Procurements

2008 Purchasing Forum – State Finance Law Drafting & Issuing the Document Appendix B (OGS General Specifications for Procurement Contracts) Non-Collusive Bidding Certificate [SFL §139-d] MacBride Certification [SFL § 165 (5)] Procurement Lobbying Certification [SFL §139 j & k] Responsibility Questionnaire [SFL §163 (9)(f)] Sales Tax Certification [Tax Law § 5-a] Consultant Disclosure [SFL §163 (4) (g)] Process for Conducting Procurements

2008 Purchasing Forum – State Finance Law Discretionary Thresholds for Purchasing [SFL §163(6)] State Agencies up to $50,000 (OGS $85,000) State Agencies up to $100,000 - For recycled or remanufactured commodities or technology - From small businesses - From ESDC certified minority/ women-owned business enterprises Government Procurement & Competitive Bidding

2008 Purchasing Forum – State Finance Law Government Procurement & Competitive Bidding Vendor preparation of specifications for technology procurements; prohibitions –Does not apply where: Sole or Single source Multiple vendors involved in preparation Vendor furnished specs or info but was not directly requested to write specs for the agency proposal Agency and Office For Technology determine restriction is not in the best interest of the state. [SFL § 163-a]

2008 Purchasing Forum – State Finance Law Bid Evaluation Approvals Required Approvals Department of Law Specialty Contracts - Civil Service - Office for Technology - Division of the Budget Government Procurement and Competitive Bidding

2008 Purchasing Forum – State Finance Law Required Approvals cont’d: Office of the State Comptroller - Over $50,000 most state agencies. (OGS $85,000; SUNY Flex) Government Procurement and Competitive Bidding

2008 Purchasing Forum – State Finance Law Other Relevant Laws Section 138 State Finance Law Non-Assignment of State Contracts Section 220 and 240 Labor Law Prevailing Wage Rate Article 2 Uniform Commercial Code Sales Government Procurement and Competitive Bidding

2008 Purchasing Forum – State Finance Law Government Procurement and Competitive Bidding Other Relevant Laws Diesel Emissions Reduction Act Section 19 ‑ 0323 Environmental Conservation Law Mercury-added Consumer Products Law Article 27, Title 21 Environmental Conservation Law

2008 Purchasing Forum – State Finance Law Questions ?

2008 Purchasing Forum – State Finance Law Noreen J. VanDoren Assistant Counsel Office of General Services (518) OGS Website: Presenter’s Contact Information